Bendel v. O'Malley

Filing 3

ORDER signed by Chief Judge Pamela Pepper on 6/3/2024 GRANTING 2 plaintiff's motion for leave to proceed without prepaying filing fee. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ANN BENDEL,
Plaintiff,
Case No. 24-cv-680-pp
v.
MARTIN J. O'MALLEY,
Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYING FILING FEE (DKT. NO. 2)

The plaintiff has filed a complaint seeking judicial review of a final
administrative decision denying her claim for disability insurance benefits
under the Social Security Act. Dkt. No. 1. She also filed a motion for leave to
proceed without prepaying the filing fee. Dkt. No. 2.
Federal law requires a person who files a complaint in federal court to
pay $405—a filing fee of $350 (28 U.S.C. §1914(a)) and a $55 administrative fee
(Judicial Conference of the United States District Court Miscellaneous Fee
Schedule Effective the December 1, 2023, #14). To allow the plaintiff to proceed
without prepaying the filing fee, the court first must decide whether the
plaintiff can pay the fee; if not, it must determine whether the lawsuit is
frivolous. 28 U.S.C. §§1915(a) and 1915(e)(2)(B)(i).
Based on the facts in the plaintiff’s affidavit, the court concludes that she
does not have the ability to pay the filing fee. The plaintiff’s affidavit indicates
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that she is not employed, she is not married and she has a 17-year-old son she
is responsible for supporting. Dkt. No. 2 at 1. The only source of income listed
by the plaintiff is $3,000 from her 21-year-old son (it’s not clear whether this is
a monthly amount or the total amount received in the last twelve months). Id.
at 2. The plaintiff lists monthly expenses of $1,600 ($400 per week) in rent,
stating that she lives in a motel. She also lists other household expenses of
“Food Stamps $200.00.” Id. The court assumes this means that the plaintiff
receives $200 per month in food stamps (although she did not list that under
income) and spends that on food each month. The plaintiff does not own a
home, a car or any other property of value; she has no cash on hand or in a
checking or savings account. Id. at 3-4. The plaintiff states, “I have several
Health issues. 1 – Pace maker, 2 – Cirrosis [sic] of Liver, 3 – Gout, 4 – Lower
Back Pain – Severe. We make money month to month – can’t afford some thing
we need. We run out of food quickly.” Id. at 4. The plaintiff has demonstrated
that she cannot pay the $405 fee.
The next step is to determine whether the case is frivolous. A case is
frivolous if there is no arguable basis for relief either in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 31 (1992) (quoting Nietzke v. Williams, 490 U.S. 319,
325 (1989); Casteel v. Pieschek, 3 F.3d 1050, 1056 (7th Cir. 1993)). A person
may obtain district court review of a final decision of the Commissioner of
Social Security. 42 U.S.C. §405(g). The district court must uphold the
Commissioner’s final decision as long as the Commissioner used the correct

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legal standards and the decision is supported by substantial evidence. See
Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013).
The plaintiff’s complaint indicates that she was denied benefits by the
Commissioner for lack of disability, that she is disabled and that the
conclusions and findings of fact of the defendant when denying benefits are not
supported by substantial evidence and are contrary to law and regulation. Dkt.
No. 1 at 1-2. At this early stage in the case, and based on the information in
the plaintiff’s complaint, the court concludes that there may be a basis in law
or in fact for the plaintiff’s appeal of the Commissioner’s decision, and that the
appeal may have merit, as defined by 28 U.S.C. §1915(e)(2)(B)(i).
The court GRANTS the plaintiff’s motion for leave to proceed without
prepaying the filing fee. Dkt. No. 2.
Dated in Milwaukee, Wisconsin this 3rd day of June, 2024.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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